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By Brett Harvey – ADF Senior  Counsel

In a remarkable 2-1 split decision, the Fourth Circuit Court of Appeals (which presides over the four states of the Carolina’s and the Virginias) invalidated the policy of Forsyth County, NC that allowed prayers to be offered before meetings of the County Council.  The court acknowledged that the county policy was “neutral and proactively inclusive.”  However, it was struck down because the court found that too many “sectarian” references would make people feel uncomfortable.

The decision is troubling on many fronts.  It is out of step with many other federal courts that have considered the validity of public invocations, including the United States Supreme Court.  It ignores the religious heritage and history of our nation.  But more troubling is the impact of the court’s decision on prayer itself.  The court decision ignores a key purpose of a public invocation.  It requires the government to censor private prayers and engage in comparative theology.  The majority opinion punishes a county for the demographic make-up of the community and signals to people from many faith traditions that their prayers are not welcome.

In a series of short blogs I will explore some of the troubling aspects of the decision in Joyner v. Forsyth County, NC decided on July 29, 2011.

If too many “sectarian” references are a problem, what is a “sectarian” reference?  The majority opinion doesn’t attempt to define it, and for good reason.  The only two federal courts that have tried to distinguish between what is “sectarian” and what is “non-sectarian” have come to the conclusion that it is a “vague and unworkable standard.” See Galloway v. Town of Greece and Pelphrey v. Cobb County.  In the Forsyth case the plaintiffs who brought suit thought a reference to Jesus was “sectarian” but a reference to Allah was not.  How many denominations or faith traditions have to agree before it is “non-sectarian?”  The Forsyth majority objects to references of a “redeemer,” but many faiths include a concept of redemption.  Doesn’t a singular reference to God seem sectarian to a Hindu, Buddhist, or Wiccan that believes in many gods?  Or for that matter, doesn’t any reference to God seem sectarian to an atheist?

Part of the problem is that identifying a “sectarian reference” requires understanding the context in which a word is used by a particular faith.   Understanding context requires theological analysis.  For example, in an different court decision, the same judge who wrote the majority opinion in Forsyth found a reference to “King of kings and Lord of lords” to be “non-sectarian” despite the fact that it is a specific title given to Jesus Christ in Revelation 19:16. A Constitutional standard cannot require a government official to know whether or not a reference can be broadly applied to one faith or is exclusive to a particular faith.

The Constitution prohibits the government from deciding which religious words are acceptable and which are not, even if the goal is to make people feel more comfortable.  That is why the Supreme Court noted that a good-faith effort to prevent sectarian references to avoid religious animosity or promote a sense of community does not justify the government getting involved in editing the content of prayers.  The High Court stated “[T]hough the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself.”  See Lee v. Weisman.

In the past four years, five different federal court cases have upheld public invocation policies like the one adopted in Forsyth County.  The decision of the 4th Circuit is out of step with these other federal courts and out of step with the U.S. Constitution.

Please share your comments below and to join the conversation join our facebook page Facebook.com/SpeakUpChurch

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By Brett Harvey – ADF Senior  Counsel

In a remarkable 2-1 split decision, the Fourth Circuit Court of Appeals (which presides over the four states of the Carolina’s and the Virginias) invalidated the policy of Forsyth County, NC that allowed prayers to be offered before meetings of the County Council.  The court acknowledged that the county policy was “neutral and proactively inclusive.”  However, it was struck down because the court found that the county did not “proactively discourage” private citizens from mentioning Jesus in prayers.

The decision is troubling on many fronts.  It is out of step with many other federal courts that have considered the validity of public invocations, including the United States Supreme Court.  It ignores the religious heritage and history of our nation.  But more troubling is the impact of the court’s decision on prayer itself.  The court decision ignores a key purpose of a public invocation.  It requires the government to censor private prayers and engage in comparative theology.  The majority opinion punishes a county for the demographic make-up of the community and signals to people from many faith traditions that their prayers are not welcome.

In a series of short blogs I will explore some of the troubling aspects of the decision in Joyner v. Forsyth County, NC decided on July 29, 2011.

In Forsyth County the commissioner invited people from every faith background in the community to give an invocation.  The county had nothing to do with who prayed because the prayer giver was taken in the order he or she volunteered.  The county took no part in regulating the prayers and refused to screen prayers in advance.  The content of the prayers was a product of the demographics of the county and entirely controlled by the conscience of the person praying.

Incredibly, the court wrote “It is not enough to contend … that the policy was ‘neutral and proactively inclusive’” rather the court decided that the county was required to be “proactive in discouraging sectarian prayer in public settings.”  By using the phrase “proactive in discouraging,” the court means people whose faith requires them to pray in the name of Jesus or some other deity need not apply.

Rather than have a policy that invites people of all faith backgrounds to give an invocation, the court evidently expects the county to screen prayers to ensure only court approved words are used or to punish those whose prayer would include a sectarian reference.  When the government tells private citizens there are words they can’t say in a public prayer, that is censorship.  The U.S. Supreme Court recognized that discouraging sectarian prayers is a form of controlling the content of prayers and found that exercising such control violates the Establishment Clause of the Constitution. See Lee v. Weisman.  Nothing gives the government more power to establish religion than to have the government tell people how and to whom they should pray.

In the past four years, five different federal court cases have upheld public invocation policies like the one adopted Forsyth County.  The decision of the 4th Circuit is out of step with these other federal courts and out of step with the U.S. Constitution.

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By Brett Harvey – ADF Senior  Counsel

In a remarkable 2-1 split decision, the Fourth Circuit Court of Appeals (which presides over the four states of the Carolina’s and the Virginias) invalidated the policy of Forsyth County, NC that allowed prayers to be offered before meetings of the County Council.  The court acknowledged that the county policy was “neutral and proactively inclusive.”  However, the policy was struck down in part because the court showed a fundamental misunderstanding about the purpose of prayer.

The decision is troubling on many fronts.  It is out of step with many other federal courts that have considered the validity of public invocations, including the United States Supreme Court.  It ignores the religious heritage and history of our nation.  But more troubling is the impact of the court’s decision on prayer itself.  The court decision ignores a key purpose of a public invocation.  It requires the government to censor private prayers and engage in comparative theology.  The majority opinion punishes a county for the demographic make-up of the community and signals to people from many faith traditions that their prayers are not welcome.

In a series of short blogs I will explore some of the troubling aspects of the decision in Joyner v. Forsyth County, NC decided on July 29, 2011.

The majority opinion decided that legislative prayer is about “acknowledging the ways in which it can bring together citizens of all backgrounds and encourage them to participate in the workings of their government.”  This is a fundamental misunderstanding that confuses a potential incidental benefit with a purpose.  It may be that a prayer can highlight public virtues and laud a common ethic that encourages others to act, but that is not its purpose. If that were the purpose, it would not be a prayer at all.  It would be an exhortation or motivational encouragement targeted to those within earshot.  Rather a prayer is a petition to God.  The intended audience of a prayer is the deity to whom the prayer is offered, not the human audience.

A public prayer is intended to beseech God for guidance and blessing.  The majority opinion reduces prayer to a civil nicety or a tradition void of any religious significance.  That is not at all what the founders of this nation thought about prayer.  The purpose of public prayer can be encapsulated in the following account:

During the Constitutional Convention the delegates were at an impasse.  On June 28, 1787, Benjamin Franklin suggested the congress pray for guidance. He retold how the Continental Congress had asked for divine aid at the start of the Revolutionary War.

“Our prayers, sir, were heard, and they were graciously answered,” he said. “And have we now forgotten that powerful Friend? Or do we imagine that we no longer need his assistance? I have lived, sire, a long time, and the longer I live the more convincing proofs I see of this truth: that God governs in the affairs of men. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid?”

In the past four years, five different federal court cases have upheld public invocation policies like the one adopted Forsyth County.  The decision of the 4th Circuit is out of step with these other federal courts and out of step with the U.S. Constitution.

Please share your comments below and to join the conversation join our facebook page Facebook.com/SpeakUpChurch

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By Brett Harvey – ADF Senior  Counsel

In a remarkable 2-1 split decision, the Fourth Circuit Court of Appeals (which presides over the four states of the Carolina’s and the Virginias) invalidated the policy of Forsyth County, NC that allowed prayers to be offered before meetings of the County Council.  The court acknowledged that the county policy was “neutral and proactively inclusive.”  However, it was struck down because too many Christians volunteered to pray and included references to Jesus in the prayers.

The decision is troubling on many fronts.  It is out of step with many other federal courts that have considered the validity of public invocations, including the United States Supreme Court.  It ignores the religious heritage and history of our nation.  But more troubling is the impact of the court’s decision on prayer itself.  The court decision ignores a key purpose of a public invocation.  It requires the government to censor private prayers and engage in comparative theology.  The majority opinion punishes the county for its demographic make-up and signals to people from many faith traditions that their prayers are not welcome.

In a series of short blogs I will explore some of the troubling aspects of the decision in Joyner v. Forsyth County, NC decided on July 29, 2011.

Religious leaders from all faith backgrounds in Forsyth County were treated exactly the same.  The court acknowledged that each was given the same opportunity to volunteer and were accepted on a first come basis.  Unfortunately the court was not satisfied with a “take-all-comers” policy reasoning that such a policy would favor the majoritarian faith in the community.  The county can only be responsible to establish a neutral policy.  The county has no control over who volunteers to pray.

The dissenting judge correctly noted that the majority’s “argument fails to recognize that the nature of the prayer was not determined by the county . . . . The frequency of Christian prayer was, rather, the product of demographics and the choices of the religious leaders who responded out of their own initiative to the County’s invitation.  The county provided the most inclusive policy possible, but it could not control whether the population was religious and which denominations’ religious leaders chose to accept the County’s invitation to offer prayer.”  The dissent recognized that the position of the majority encourages the county to establish “sectarian quotas.”

According to the rationale of the majority, the policy adopted by Forsyth County could be implemented in New York City without a problem because of the religious diversity of the population, but not in Forsyth County because there are just too many Christians.  The Constitution should protect the rights of the people in Forsyth County to the same extent that it protects the rights of people in New York City.

In the past four years, five different federal court cases have upheld public invocation policies like the one adopted Forsyth County.  The decision of the 4th Circuit is out of step with these other federal courts and out of step with the U.S. Constitution.

Please share your comments below and to join the conversation join our facebook page Facebook.com/SpeakUpChurch

Author

By Brett Harvey – ADF Senior  Counsel

In a remarkable 2-1 split decision, the Fourth Circuit Court of Appeals (which presides over the four states of the Carolina’s and the Virginias) invalidated the policy of Forsyth County, NC that allowed prayers to be offered before meetings of the County Council.  The court acknowledged that the county policy was “neutral and proactively inclusive.”  However, it was struck down because the court found that the references to Jesus in the prayers offered by private citizens were too “frequent.”

The decision is troubling on many fronts.  It is out of step with many other federal courts that have considered the validity of public invocations, including the United States Supreme Court.  It ignores the religious heritage and history of our nation.  But more troubling is the impact of the court’s decision on prayer itself.  The court decision ignores a key purpose of a public invocation.  It requires the government to censor private prayers and engage in comparative theology.  The majority opinion punishes a county for the demographic make-up of the community and signals to people from many faith traditions that their prayers are not welcome.

In a series of short blogs I will explore some of the troubling aspects of the decision in Joyner v. Forsyth County, NC decided on July 29, 2011.

The majority opinion determined that occasional sectarian references are acceptable, but the court disapproved of a collection of prayers in which the “sectarian” references were too “frequent.”  In practice, how can the county comply with the court’s ruling?  The county can either ban “sectarian” references outright or stop them after the number of references approaches a mystery number that becomes too “frequent.”  The impact of this rule is to categorically exclude people who believe that a prayer needs to reference the deity to whom it is directed from participating in the public invocation.

There are some Christian denominations that require a prayer to be offered in the name of Jesus.  This belief is rooted in a theological understanding about the relationship between God and man.   But the impact of the Majority’s opinion is not limited to Christians.  For religions that worship many gods or goddesses, how does a prayer giver focus their petition?  Unfortunately, the decision by the majority has sent a message to people whose faith requires them to pray in the name of Jesus or some other deity – you need not apply.

The majority opinion has unwittingly elevated and preferred the religious practices of those without a conviction concerning the naming of a deity above those who do not.  The Constitution should respect the prayers of all citizens.  The government has no business telling people how and to whom they can pray.

In the past four years, five different federal court cases have upheld public invocation policies like the one adopted Forsyth County.  The decision of the 4th Circuit is out of step with these other federal courts and out of step with the U.S. Constitution.

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